Jonny Flor v Bingara One Pty Ltd

[2023] FWC 58

[2023] FWC 58

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Jonny Flor
v

Bingara One Pty Ltd

(C2022/5190)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Johnny Flor (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by the Bingara One Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 21 July 2022. The application was filed by the applicant’s representative. The Commission telephoned the applicant and left a voicemail requesting a return call in relation to the non-payment of the filing fee. The applicant did not answer and a voice message was left. The Commission also sent a letter by email to both the applicant and the applicant’s representative with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows “[i]f you don’t do this, your application may be dismissed.”

1. A further telephone call was made to the applicant on 3 August 2022. A voicemail was left following up payment for the application.

1. On 17 August 2022, a further telephone call was made to the applicant and a voicemail was left. A letter was sent. A letter was also sent to the applicant and his representative advising how to pay the application fee or make a waiver application. The letter stated:

“If we don’t hear from you by 24 AUGUST 2022 with the information we need, we

may dismiss your application. This means we will close your case.”

(emphasis omitted)

1. On 26 August 2022, the Commission telephoned the applicant on two occasions, leaving a voicemail on the first attempt. On the second call, the applicant answered and advised the Commission that he was unable to pay the application fee because he did not have any money. The Commission advised he could make a waiver application.

1. On 19 September 2022, the Commission telephoned the application leaving a voicemail advising him that the application may be dismissed. An email was also sent to the applicant and his representative advising that dismissal of the application would proceed without further notice if the application fee was not paid or a waiver application made.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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